[Editor’s Note: This is the third entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]

–Jacob Weinrib, Queen’s Faculty of Law

In the
final years of the nineteenth century, FW Maitland looked to “the real practical working of English public
law”[1] and observed a transformation: “The
new wants of a new age have been met in a new manner.”[2] The transformation consisted in the
legislative delegation of an ever-increasing array of powers to an
ever-increasing array of agencies. In
this new age, Maitland insisted that any adequate theory of public law would have
to offer a way of thinking about the kinds of functions that administrative
agencies should perform. Because he had
no such theory to offer, he apologized to his students for his “very poor
lecture” on administrative law, and admonished them not to overlook the
increasing significance of administrative agencies and their functions even “though
we can do little more than barely state their existence.”[3]

If we
are to move beyond the mere description of the functions that administrative
agencies perform, we must come to grips with a series of fundamental questions
raised by the transformation that Maitland observed. What is the connection between public law,
with its concern for the relationship between sovereign and subject, and the
various functions that administrative agencies perform? Are these functions to be regarded simply as
the residue of past legislative decisions?
Or do these functions respond to some underlying (set of) moral
problem(s) that public law presents? In
short, what is the moral significance of administrative functions? These questions form Maitland’s challenge. This
challenge is made all the more pressing by, on the one hand, the proliferation
of administrative functions that has occurred since Maitland’s day and, on the
other, persistent calls to roll back the administrative state.

Maitland’s
challenge extends from the emergence of administrative law to our contemporary
efforts to make sense of it. Open your
favorite treatise on administrative law and you will see two disconnected
answers to the common question, “What is administrative law about?” The first holds that administrative law is
about the principles that animate the judicial review of administrative action,
which are often thought to include the rule of law, the separation of powers,
fairness, democracy, accountability, and so on.
Another answer says: administrative law is about the various functions
that the legislature, at a particular time and place, has called on
administrative agencies to perform. This
sprawling list of functions includes the provision of public services and
social support, forms of social control including the prison and immigration
systems, implementation of human rights and labour regimes, and the regulation
of the economy, trades and professions, and particular
industries.. And so students are confronted by two
disparate stories about the meaning of administrative law, a story about the principles
apposite to the judicial oversight of administrative action and a story
(largely devoid of principles) about the functions that administrative agencies
happen to perform. But suppose one asks:
What is the connection between these accounts?
Is there a principled way of thinking about the functions that
administrative agencies must perform?
And if so, might there be a single reservoir of principles capable of
illuminating the whole of public
administration, that is, the functions that an administrative state must
perform and the law that governs the performance of these functions? Does the road to an adequate theory of
administrative law run through a theory of the administrative state?

Contemporary accounts of administrative law shy away from these questions. Their presupposition is that the principles that guide administrative law can be elucidated without reference to the reason why we have an administrative state in the first place. FR Scott, Canada’s leading scholar of constitutional and human rights, objected to this way of thinking about and teaching administrative law when he observed: “Lawyers tend to pay attention mostly to judicial review over administrative agencies; law school courses in administrative law usually concentrate on this aspect of the matter. Yet this, though of great importance, is not the central issue.”[4] Scott conceived the central issue to be the moral object of the laws that public officials are to implement. Referring to unemployment insurance, old age pensions, and free universal education, Scott suggested that the common purpose underlying these regimes was to realize a class of human rights that require government action rather than forbearance. Further, he held that “among members of the legal profession” these “forms of human rights” are “apt to be forgotten or neglected, because these social insurances require administration through government commission and enforcement in administrative tribunals rather than consultation with lawyers and actions in the regular courts.”[5] For Scott, as for Maitland, our theories of administrative law are radically incomplete so long as they have nothing principled to say about the functions that administrative agencies must perform. In my essay for the Oxford workshop, “New Directions in Administrative Legal Theory”, I begin to confront Maitland’s challenge. These steps are both critical and constructive. As a critical matter, I argue that the leading contemporary theories of public law have no answer to Maitland’s challenge. The result is skepticism about both the administrative state and law that governs it. As a constructive matter, I sketch an approach that responds to Maitland’s challenge by articulating a class of rights that public administration alone can realize.

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